Supreme Court flags ‘manufactured consent’, questions WhatsApp–Meta data sharing

The Supreme Court has raised sharp concerns over WhatsApp and Meta’s data-sharing practices, signalling that it may step in to protect users’ right to privacy while hearing appeals linked to a Competition Commission of India (CCI) penalty of Rs 213.14 crore imposed on Meta over WhatsApp’s 2021 privacy policy.

The case stems from WhatsApp’s “take it or leave it” policy, which the CCI held to be unfair and anti-competitive. On November 4, 2025, the National Company Law Appellate Tribunal (NCLAT) upheld the penalty but partly relaxed the regulator’s five-year ban on data sharing, permitting limited sharing for advertising purposes. A subsequent clarification on December 15, 2025, stated that while advertising-related data sharing could continue, all data sharing—advertising and non-advertising—must offer users a clear opt-out.

A Bench led by Chief Justice of India Surya Kant, hearing appeals filed by WhatsApp and Meta along with a separate challenge by the CCI, took a dim view of the companies’ approach. “We will not allow to share a single piece of information. You can’t play with the right to privacy in this country,” the CJI said, calling the practice a “mockery of constitutionalism”.

The Court questioned how consent could be treated as genuine when users are compelled to accept terms to continue using the service. Justice Joymalya Bagchi observed that the findings against the companies rested on the conclusion that the consent obtained was “manufactured consent”.

The Bench also warned that compliance with constitutional guarantees was non-negotiable. “If you can’t follow our Constitution, leave India. We won’t allow citizens’ privacy to be compromised,” the CJI said.

Expressing scepticism over opt-out mechanisms, the Court noted that users such as a street vendor or someone in a remote area of Tamil Nadu or Bihar may not grasp the “crafty language” of privacy policies. It described consumers as being commercially exploited and silent users as victims with “no voice”.

The judges further remarked that platforms had made users “addicted”, leaving them with no real choice but to accept the terms. “This is a decent way of committing theft on the privacy of the country. Right to privacy is so zealously protected in this country, we will not allow you to violate it,” the CJI said.

The matter has been posted for interim directions on February 9. Allowing a joint request by senior counsel, the Court impleaded the Union of India as a respondent and permitted it to file a counter-affidavit.